[Congressional Record Volume 160, Number 86 (Wednesday, June 4, 2014)]
[Senate]
[Pages S3420-S3421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                        MASTROIANNI CONFIRMATION

  Ms. WARREN. Mr. President, earlier today, the Senate confirmed Mark 
Mastroianni to fill a judicial vacancy in Western Massachusetts on the 
District Court for the District of Massachusetts.
  Mr. Mastroianni came highly recommended by the Advisory Committee on 
Massachusetts Judicial Nominations. The advisory committee is comprised 
of distinguished members of the Massachusetts legal community, 
including prominent academics and litigators, and is chaired by former 
Massachusetts district court judge Nancy Gertner. Their recommendation 
reflects the strong sense of the Massachusetts legal community--and in 
particular the legal community of Western Massachusetts--that he will 
make an excellent district court judge.
  Mr. Mastroianni is a true son of Western Massachusetts--born in 
Springfield and a lifelong resident of Hampden County. Prior to his 
confirmation, he served as the elected district attorney for Hampden 
County--a position he has held since 2011. He graduated with honors 
from the American International College in Springfield, MA and went on 
to earn his law degree from Western New England College School of Law--
also in Springfield, MA.
  Mr. Mastroianni began his career in the Hampden County district 
attorney's office. He served there as an assistant district attorney 
for over 5 years, gaining prosecutorial experience in a wide variety of 
district and superior court matters. He then moved into private 
practice, where he built a significant career as a defense attorney 
representing clients in criminal and civil matters. Over the course of 
16 years, he represented clients in matters before the Massachusetts 
State trial courts and appeals courts, as well as the district court to 
which he has been nominated.
  In November 2010, Mastroianni ran as an independent and was 
successfully elected to serve as the district attorney for Hampden 
County in the western part of Massachusetts--a position that returned 
him to lead the office where he began his career. As district attorney, 
he was responsible for managing the prosecution of all cases in the 23 
cities and towns that make up Hampden County.
  Aside from the impressive qualifications of this candidate, the fact 
of Mark's nomination is particularly important because the seat he has 
been nominated to fill has been vacant for far too long--since U.S. 
District Court Judge Ponsor took senior status in 2011. The vacancy has 
strained the Federal judicial system in Western Massachusetts, causing 
cases to be postponed, forcing judges from Boston to travel to 
Springfield to hold hearings, and impeding the ability of citizens to 
get their day in court. Filling this vacancy as quickly as possible has 
been a top priority for me since I arrived in the Senate last year, and 
his confirmation will significantly improve the administration of 
justice in Western Massachusetts.
  I am proud to have recommended Mark Mastroianni to President Obama. 
He is an independent-minded district attorney whose diverse litigation 
experiences, both as a top prosecutor and as a top defense attorney, 
will enrich the Federal bench in Massachusetts. I have no doubt that he 
will have a long and distinguished career as a member of the judiciary.
 Mr. LEE. Mr. President, on April 11 of this year President 
Obama nominated Sylvia Burwell to be the new Secretary of the 
Department of Health and Human Services--HHS--a position that was 
vacated that same day by former Secretary Kathleen Sebelius.
  Article II, Section 3, Clause 2 of the United States Constitution 
grants the President, as the chief executive, plenary power to nominate 
members of his cabinet. But that same clause reserves the power of 
appointment--that is, the power to accept or reject the nominee--
exclusively to the Senate.
  The Constitution explains this unique division of power as follows: 
the President ``shall nominate, and''--this is important--``by and with 
the Advice and Consent of the Senate, shall appoint Ambassadors, other 
public Ministers and Consuls, Judges of the supreme Court, and all 
other officers of the United States.''
  Far from a perfunctory practice, the responsibility to review the 
fitness of presidential nominees is one of the essential mechanisms in 
our Constitution's system of checks and balances.
  And for the Members of this body who took an oath to ``support and 
defend'' the Constitution, this is one of the most solemn duties 
incumbent upon those occupying the office of United States Senator.
  I urge my fellow Senators to demand that prior to confirmation Ms. 
Burwell provide concrete, specific, and forthright answers--in 
writing--to the questions that have been asked of her by Members of 
this body.
  I refuse to sit idly by and witness the same Washington charade in 
which stated commitments to transparency are more important than actual 
demonstrations of candor.
  If we do not insist that Ms. Burwell's appointment be contingent upon 
the transparency of her confirmation process, we will have established 
a dangerous precedent for the future of this body.
  Let's not forget: much of the authority that resides in HHS 
ultimately derives from the delegation of authority from Congress. And 
whenever Congress delegates power to the executive branch, we do so 
based on the premise that we retain the power of oversight.
  Therefore, we cannot, in good faith, hand over the reins of one of 
the most important executive departments at a time when questions 
remain unanswered and information is still undisclosed. Doing so would 
undermine the institutional prerogatives of the Senate.
  When we only partially carry out our constitutional duties to check 
and balance the other branches, we alone are to blame for the continued 
accumulation of power in the executive, where unelected bureaucrats are 
not always as wise or as impartial as their proponents claim them to 
be.
  The unprecedented accumulation of power in the executive today is a 
demonstrable fact. But it remains an open question whether we in 
Congress care enough to do anything about it.
  At this point, there is good reason for pessimism--if the kind of 
acquiescence demonstrated in this confirmation process is any 
indication.
  But I remain optimistic, because I know that the American people 
still get it. Outside the beltway, Americans still instinctively 
understand the universal truth articulated by James Madison, the father 
of the Constitution, over 200 years ago--that ``The accumulation of all 
powers, legislative, executive, and judiciary, in the same hands, 
whether of one, a few, or many, and whether hereditary, self-appointed, 
or elective, may justly be pronounced the very definition of tyranny.''
  This is precisely the type of accumulated power possessed by 
executive departments such as HHS.
  This power cannot be curtailed or dispersed overnight. But it will 
continue to expand inexorably toward tyranny unless Members of 
Congress--exercising our powers as officers of a separate and coequal 
branch of government--don't push back.
  We can begin by subjecting this nomination to the close scrutiny it 
deserves.
  The first thing we must recognize is that this is not the average 
presidential nomination. We are not talking about the next secretary of 
the Department of Motor Vehicles. Quite the opposite: Ms. Burwell has 
been nominated to preside over one of the largest and most important 
departments in the Federal Government. No matter who the nominee, this 
is a job that should be filled with caution and circumspection.
  By way of illustration, the HHS Secretary oversees an annual 
operating budget of about $1 trillion--that is nearly 25 percent of all 
Federal spending--as well as 11 separate operating divisions, including 
the very important Centers for Medicare and Medicaid Services--CMS--and 
the Food and Drug Administration--FDA.
  Moreover, the next HHS Secretary is going to assume the helm of an 
executive leviathan in the midst of implementing the Patient Protection 
and Affordable Care Act. Obamacare is not only the most complex--and 
controversial--law in recent memory, but it delegates an unprecedented 
amount of authority to the HHS Secretary.
  Often this delegation comes in the form of sweeping, open-ended 
grants of

[[Page S3421]]

power that give the Secretary discretion to shape and reshape the law. 
Like an unending series of blank checks to the bureaucracy, Obamacare 
contains 700 instances of the ultimate carte blanche--``The Secretary 
shall . . .''--to give the Secretary wide latitude to ``develop 
standards,'' ``award grants,'' ``establish committees,'' ``make 
adjustments,'' etc.
  This kind of massive delegation of authority is justified--especially 
by those who see it as a convenient way to avoid the difficulties of 
lawmaking--on the theory that Congress will retain and exercise some 
degree of oversight.
  And it is true that both chambers of Congress have the ability to 
hold hearings in which we subpoena executive officials to testify and 
answer questions about laws, rules, and regulations under their 
jurisdiction. But as we have seen over the past few years with the 
implementation of Obamacare, this power is significantly impeded if 
those executive officials refuse to answer our questions.
  These facts raise the central question that ought to guide the 
Senate's consideration of Ms. Burwell's nomination--namely, how will 
Ms. Burwell exercise the expansive authority delegated to HHS vis-aa-
vis the powers and responsibilities of Congress?
  Much of the job of the next HHS Secretary will be to facilitate 
Congressional oversight of the Department, especially in its 
implementation of Obamacare. Therefore, the Senate's decision should be 
contingent upon Ms. Burwell's record of engaging with Congress.
  Sadly, Ms. Burwell's tenure as the Director of the Office of 
Management and Budget, as well as her performance in the Senate 
committee confirmation hearings, gives me concern that she will 
continue in the pattern of obfuscation and evasion established by 
outgoing Secretary Kathleen Sebelius.
  I therefore respectfully submit that we should proceed cautiously in 
consideration of this nominee. More cautiously, indeed, than we have up 
to this point.
  For over the past 6 weeks, since the President nominated Ms. Burwell, 
many in this body have neglected our end of the constitutional division 
of power--preferring to act as if Ms. Burwell's appointment was a fait 
accompli.
  This state of affairs is troubling--and not simply because questions 
remain unanswered, and information undisclosed, about Obamacare. The 
problem is more fundamental than any one law.
  The Senate's reluctance to protest against the equivocation and 
distortion seen in this confirmation process undermines the separation 
of powers and the system of checks and balances upon which our 
constitutional order depends.
  Respecting and upholding these principles of our Constitution is not 
a matter of adhering to some arcane formality or following some 
outdated tradition of the 18th century.
  At issue here is whether or not this institution still believes in 
the reason our Constitution divides power in the first place. Do we 
still believe, as Madison said, that ``power is of an encroaching 
nature, and that it ought to be effectually restrained from passing the 
limits assigned to it''?
  If we do, then we must employ the tools at our disposal to assert our 
institutional prerogatives. Doing so will demonstrate to the other 
branches that the power of government is not simply up for grabs.
  Here again Madison's insights are instructive: in the famous 
Federalist 51, he says, ``the great security against a gradual 
concentration of the several powers in the same department, consists in 
giving to those who administer each department the necessary 
constitutional means and personal motives to resist encroachments of 
the others. [. . .] Ambition must be made to counteract ambition. The 
interest of the man must be connected with the constitutional rights of 
the place.''
  But if we disagree with Madison about the encroaching nature of power 
. . . if we are undisturbed by the great accumulation of power in the 
executive branch, which predates and will outlive Obama's presidency . 
. . if we prefer to elevate policy preference and party allegiance over 
love of liberty and the constitutional rights of Congress . . . then we 
must not be surprised when--not if--our government takes on the 
character and the spirit of tyranny.
  Let me be clear: the kind of tyranny that threatens us is not of the 
Saddam Hussein or Bashar al-Assad variety. The tyrannies of Saddam's 
Iraq and, today, Assad's Syria are barbarous, murderous dictatorships 
that extinguish every semblance of freedom and maintain their power 
through violence and brutality.
  What I am talking about is the kind of soft despotism that arises 
when power is consolidated under the auspices of a paternal, benevolent 
government.
  At the end of his study of democracy in 19th-century America, Alexis 
de Tocqueville explained how this kind of tyranny could emerge within a 
democratic republic such as ours. Standing as a kind of warning for us 
today, Tocqueville envisioned ``an immense and tutelary power'' that 
``extends its arms over society as a whole,'' covering it ``with a 
network of small, complicated, painstaking, uniform rules through which 
the most original minds and the most vigorous souls cannot clear a way 
to surpass the crowd.'' It does not ``break wills,'' he said, ``but it 
softens them, bends them, and directs them; it rarely forces one to 
act''--even Tocqueville didn't foresee the individual mandate--``but it 
constantly opposes itself to one's acting; it does not destroy, it 
prevents things from being born.''
  This is certainly a dark image. But we cannot forget that Tocqueville 
was bullish about America. He believed that American democracy had the 
right attributes needed to avoid descending to these depths.
  Chief among these attributes were our constitutional structures that 
divided power and, more importantly, the spiritedness, courage, and 
love of freedom that animated the American people and transformed the 
mere ``parchment barriers'' of the Constitution into true limits on 
governmental power.
  It is precisely this spirit of freedom that the Senate must recover 
if we are going to fulfill our constitutional obligations in this 
confirmation process. Once we recognize the need to assert and defend 
our interests as a separate and coequal branch of the government, we 
will begin to focus on what is really at stake in our consideration of 
this nominee.
  The main issue here is not Ms. Burwell's character or credentials--
both of which are first-rate--but whether or not her appointment will 
improve or further deteriorate the legislature's oversight over the 
executive departments to which Congress has delegated vast amounts of 
authority.
  The question is not whether Ms. Burwell deserves to be HHS Secretary, 
but whether the HHS, under Ms. Burwell's management, will continue in 
the pattern of obstinate autonomy and limited cooperation established 
under her predecessor.
  If the answer is no, we cannot possibly vote to confirm this 
nominee.

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